What does H.R. 5211  do?

H.R. 5211 allows copyright owners to protect their property.  The bill gives copyright owners, such as songwriters and photographers, a limited safe harbor from liability when they prevent piracy of their works through publicly accessible, peer-to-peer (P2P) networks, like KaZaA, Morpheus, and Gnutella.

Does H.R. 5211 allow copyright owners to hack into my computer?

No.  Despite wildly inaccurate press reports, H.R. 5211 in no way allows a copyright owner to “hack” into anyone’s computer.  Copyright owners are only allowed to enter or look into a P2P user’s computer to the same extent that any other P2P user is able to do so.  In other words, if a KaZaA user has advertized to all 100 million other KaZaA users that he wants to download or distribute a copyrighted song, the songwriter is not “hacking” if she reads the advertisement like everyone else.  H.R. 5211 then allows the songwriter to take certain, limited actions to stop the distribution of her copyrighted song between KaZaA users, but in no way allows her to enter or look into a private area of those KaZaA users’ computers.

Why is a safe harbor from liability for copyright owners necessary?

Certain laws, while intended to prohibit malicious computer hacking, are so broadly drafted that they may inadvertently create liability for copyright owners who are merely trying to prevent piracy of their creations on P2P networks.  Because it is virtually certain that some P2P pirates will attempt to use those laws to prevent copyright owners from stopping piracy, it is necessary to clarify those laws.

Does the P2P Piracy Prevention Act authorize copyright owners to do illegal things that no one else can do?

No.  H.R. 5211 just ensures that copyright owners are treated like other property owners.  Current law allows property owners in many contexts to use “self-help” to protect their property.  Satellite companies face no liability when they use electronic countermeasures to stop the pirating of their signals and programming.  Banks face no liability when they repossess automobiles for delinquent loan payments.  A bicycle owner faces no liability for grabbing his bike from a thief’s yard.  A victim of a pickpocket faces no liability for tackling and taking back his wallet from the pickpocket.  However, due to the overbreadth of many anti-hacking laws, copyright owners do not have a corresponding ability to prevent the theft of their property through P2P systems.  H.R. 5211 would correct this unintentional inequity.

Doesn’t current law provide copyright owners with sufficient tools to stop piracy?

The massive copyright piracy occurring on decentralized, P2P networks cannot be adequately addressed through current law.  Decentralized P2P networks were designed specifically (and ingeniously) to thwart suits for copyright infringement by ensuring there is no central service to sue.  Digital rights management technologies provide no protection to copyrighted works once they are distributed “in the clear” on P2P networks.  Lastly, suits against individual infringers on P2P networks are viable, but are unlikely to make a dent in the billions of files traded monthly among over 150 million P2P network users.

Who does H.R. 5211 benefit?

H.R. 5211 will help all copyright owners, including songwriters, photographers, musicians, software programmers, needlepoint designers, film producers, journalists, graphic artists, and recording artists.  H.R. 5211 restores to these copyright owners the right to decide whether their creations are distributed through P2P networks, and takes that decision out of the hands of pirates.  A  photographer - not a pirate - should decide whether her photographs are distributed through Gnutella.

In addition, H.R. 5211 will help consumers by fostering the development of reliable and legal online services for downloading copyrighted works.  P2P networks are notoriously unreliable, have bugs that expose personal information to public disclosure, can be used as “tunneling protocols” to breach computer security, and are rife with malicious viruses.  However, some copyright owners have been stymied - at least partially - in their efforts to roll out legitimate online services because they cannot compete with  the free availability of their works on P2P networks.

Is P2P file-sharing illegal?

It depends.  P2P file sharing is perfectly legal if the work being shared is not copyrighted or is shared with the authorization of the copyright owner.  However, unauthorized distribution of copyrighted works through a publicly accessible, P2P network is copyright infringement pure and simple.  There is no concept of fair use that encompasses making a copyrighted needlepoint design available for downloading by 100 million KaZaA users.

Does the safe harbor created by H.R. 5211 extend to any copyright owner who interferes with file-trading upon a reasonable basis to believe piracy is taking place?

No.  It is an utter fabrication to say that H.R. 5211 provides a safe harbor for copyright owners who have a “reasonable basis” to believe piracy is taking place.  There simply is no “reasonable basis” language in the safe harbor created by H.R. 5211.  The actual language of H.R. 5211 is clear: it only provides a safe harbor to copyright owners who actually impair the piracy of their copyrighted works through P2P networks - without regard to whether they have a reasonable basis to believe piracy is taking place.  To put it another way: under H.R. 5211, a copyright owner who impairs lawful file-trading would not get the benefit of the safe harbor even if that copyright owner had a reasonable basis to believe piracy is taking place.

Does this bill protect computer users against overzealous or unscrupulous copyright owners that might abuse the safe harbor the bill provides?

Yes.  H.R. 5211 provides strong protections against abuses by overzealous or unscrupulous copyright owners.  In fact, H.R. 5211 provides computer users with more protection than current law.  If a copyright owner engages in abusive actions, the affected computer user can sue the copyright owner for all remedies available under prior law, and in addition, can bring a new cause of action created by H.R. 5211.  Furthermore, H.R. 5211 gives the U.S. Attorney General new power to stop an abusive copyright owner from ever again using self-help measures.

Does H.R. 5211 limit the ability of P2P users to sue a copyright owner for hacking, wrongfully stopping file-trading, or otherwise damaging their computers?

No.  To the contrary, H.R. 5211 provides P2P users with More remedies against copyright owners who “hack”, stop lawful file-trading, damage computers, or otherwise wrongfully interfere with file-trading.  Subsection 514(f)(2) of H.R. 5211 specifically preserves all remedies that a P2P user or any other person, including network operators, may have under current law to sue copyright owners for such activities.  In fact, H.R. 5211 provides affected P2P users with a new, additional cause of action against copyright owners who wrongfully impair lawful file-trading.  Further, H.R. 5211 creates a new ability for federal prosecutors to act on behalf of affected file traders and stop copyright owners from wrongfully interfering with file-trading.

Does H.R. 5211 require P2P users to suffer more than $250 in damages before they can sue a copyright owner for hacking, wrongfully stopping file-trading, or otherwise damaging their computers?

No.  An affected P2P user can sue a copyright owner in such circumstances under a wide variety of statutes and legal theories which have different monetary thresholds.  H.R. 5211 does not alter these remedies or create a $250 threshold for using them.  H.R. 5211 does create a brand-new cause of action, in addition to all previous causes of action, that contains a $250 threshold, but the creation of this new cause of action does not affect a P2P user’s ability to also access other, pre-existing remedies.

Will H.R. 5211 allow copyright owners to “bring down” P2P networks?

No.  H.R. 5211 is quite clear that it only immunizes the blocking of copyright infringement on P2P networks.  A copyright owner would remain fully liable for any action that “brings down” or otherwise disrupts P2P networks, even though such disruptions were the unintended consequence of stopping infringements.  It is critical to remember that H.R. 5211 does not create some new, affirmative right for copyright owners, but only provides them with a limited safe harbor from potential liability under other laws.  As such, H.R. 5211 only limits a copyright owner’s liability for the activities specified in the legislation, and cannot be read to limit liability for activities not specified therein.  Attempts by piracy profiteers to read the bill more broadly are akin to saying that H.R. 5211 would allow a copyright owner to burn down a P2P user’s house if such arson had the effect of disrupting file trading.

Will H.R. 5211 allow copyright owners to violate the privacy of P2P users?

No.  Nothing in the bill implicates the privacy of P2P users, and in fact, the bill may enhance privacy.  A P2P user has no expectation of privacy in computer files that he has chosen to publicly download from, or distribute to, 100 million other P2P users.  H.R. 5211 only allows copyright owners to view these files to the same extent as all other 150 million P2P users have such an ability, thus, the bill does not violate a P2P user’s privacy.  Furthermore, H.R. 5211 does not give copyright owners any ability to determine “who” a P2P infringer is.  Rather, a copyright owner, like every other P2P user, simply knows “where” - at which IP address - their copyrighted work is located.

In fact, the types of technological self-help measures encouraged by H.R. 5211 will prove less invasive of privacy than the other option - lawsuits against individual infringers.  The use of technological self-help measures only reveals the IP address of a file on a P2P network, but does not reveal the identity of the distributor or downloader of that file.  Lawsuits, on the other hand, necessitate the public identification of a P2P infringer, and will usually involve the entry into public court documents of many private files, data, photographs, and other correspondence found on the infringer’s computer.

Does the bill outlaw or otherwise “kill” P2P networks?

No.  H.R. 5211 only affects illegal activity on P2P networks, but in no way affects the networks themselves or the sharing of legal content through them.  Further, the bill recognizes that P2P networks are tremendous technological innovations that could be used for many beneficial purposes, but that they will not reach their potential until their use for illegal purposes is curtailed.  H.R. 5211 aims to clean up P2P networks, not clear them out.  Those who claim that the bill will kill P2P networks are short-sighted piracy profiteers who believe P2P networks are only useful for illegal purposes.

Will the bill allow copyright owners to knock P2P file sharers offline?

No.  As noted above, H.R. 5211 only immunizes the blocking of copyright infringement on P2P networks.  A copyright owner would remain fully liable for any action that knocks a P2P user offline, even if such disruptions were the unintended consequence of stopping infringements.  It is critical to remember that H.R. 5211 does not create some new, affirmative right for copyright owners, but only provides them with a limited safe harbor from potential liability under other laws.  As such, H.R. 5211 only limits a copyright owner’s liability for the activities specified in the legislation, and cannot be read to limit liability for activities not specified therein.

Does H.R. 5211 allow copyright owners to destroy files on my computer?

No.  H.R. 5211 explicitly states that it does not allow copyright owners to destroy, corrupt, or otherwise alter files or data on a P2P user’s computer.